Section B. Attacks against combatants
St. Petersburg Declaration
The preamble to the 1868 St. Petersburg Declaration states: “[T]he only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy.”
Additional Protocol I
Article 48 of the 1977 Additional Protocol I states: “Parties to the conflict … shall direct their operations only against military objectives.”
Additional Protocol I
Article 52(2) of the 1977 Additional Protocol I states: “Attacks shall be limited strictly to military objectives.”
Additional Protocol II (draft)
Article 24(1) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided: “In order to ensure respect for the civilian population, the parties to the conflict shall confine their operations to the destruction or weakening of the military resources of the adversary.”
This proposal was amended and adopted by consensus in Committee III of the CDDH.
The approved text provided: “In order to ensure respect and protection for the civilian population … the Parties to the conflict … shall direct their operations only against military objectives.”
Eventually, however, it was deleted in the plenary, because it failed to obtain the necessary two-thirds majority (36 in favour, 19 against and 36 abstentions).
Convention on Cluster Munitions
According to the preamble to the 2008 Convention on Cluster Munitions, States Parties based their agreement on the prohibition of the use, development, production, stockpiling, retention or transfer of cluster munitions on various principles of IHL, including that they will “distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly direct their operations against military objectives only”.
Article 15 of the 1863 Lieber Code states: “Military necessity admits of all direct destruction of life or limb of ‘armed’ enemies … it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor.”
The commentary on Article 3 of the 1880 Oxford Manual refers to the principle laid down in the 1868 St. Petersburg Declaration: “The only legitimate end which States may have in war being to weaken the military strength of the enemy.”
Hague Rules of Air Warfare
According to Article 24(2) of the 1923 Hague Rules of Air Warfare, “military forces” are military objectives.
New Delhi Draft Rules
Article 7 of the 1956 New Delhi Draft Rules states: “In order to limit the dangers incurred by the civilian population, attacks may only be directed against military objectives.”
Paragraph I(1) of the proposed annex to Article 7(2) of the 1956 New Delhi Draft Rules stated that “armed forces, including auxiliary or complementary organizations, and persons who, though not belonging to the above-mentioned formations, nevertheless take part in the fighting” were military objectives considered to be of “generally recognized military importance”.
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 Articles 48 and 52(2) of the 1977 Additional Protocol I.
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 Articles 48 and 52(2) of the 1977 Additional Protocol I.
San Remo Manual
Paragraph 41 of the 1994 San Remo Manual provides: “Attacks shall be limited strictly to military objectives.”
UN Secretary-General’s Bulletin
Section 5.1 of the 1999 UN Secretary-General’s Bulletin states: “Military operations shall be directed only against combatants and military objectives.”
Australia’s Defence Force Manual (1994) states: “Military operations must only be conducted against enemy armed forces and military objects.”
Australia’s LOAC Manual (2006) states: “Military operations must only be conducted against military objectives, including combatants”.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium’s Teaching Manual for Soldiers states that only enemy combatants may be attacked.
Benin’s Military Manual (1995) states: “A combatant must fight only combatants.”
Burundi’s Regulations on International Humanitarian Law (2007) states: “Only combatants … may be attacked.”
Canada’s LOAC Manual (1999) states: “Combatants are legitimate targets and may be attacked.”
Canada’s Code of Conduct (2001) requires Canadian forces to “engage only opposing forces and military objectives”.
Canada’s LOAC Manual (2001) states:
406. Definition of legitimate targets
1. “Legitimate targets” include combatants, unlawful combatants and military objectives.
1. Combatants are legitimate targets and may be attacked unless they have been captured, surrendered, expressed a clear intention to surrender, or are hors de combat (i.e., out of combat), provided they refrain from hostile acts and do not attempt to escape …
409. Airborne troops
1. Airborne troops are combatants and therefore legitimate targets. They may be attacked during their descent by parachute from aircraft.
Rule 1 of Canada’s Code of Conduct (2005) instructs Canadian Forces (CF) personnel: “Engage only opposing forces and military objectives.”
The Code of Conduct further explains:
1. Rule # 1 is the cornerstone of the Law of Armed Conflict. It is consistent with and in fact reflects two of the Principles of War, namely “selection and maintenance of the aim” and “economy of effort.” Any deviation from the military aim jeopardizes the mission. Thus, whether you are involved in defensive or offensive operations, your effort must be directed toward the continued maintenance of the aim. It would be considered a waste of resources to engage forces that are not hostile or that have been rendered incapable of further hostilities, or to attack objectives or other objects not used for a military purpose. It is unlawful as well as unsound from an operational point of view.
3. Force used during operations must be directed against opposing forces and military objectives. Therefore, civilians not taking part in hostilities must not be targeted. Rule #1 not only makes sense morally but also helps to ensure the most efficient use of military resources. In simple terms, “warriors fight warriors.”
5. An “opposing force” is any individual or group of individuals who pose a threat to you or your mission. It is sometimes difficult to identify who the opposing forces are. At one time most armed conflict involved organized armed forces. However, since World War II an increasing number of conflicts involve paramilitary, irregular or poorly organized armed groups. Sometimes these groups are fighting for ethnic or religious reasons. Often members of such paramilitary or irregular armed groups do not wear uniforms or operate in organized units. … In an armed conflict … the enemy forces are opposing forces whether or not they pose an immediate threat.
Canada’s Use of Force Manual (2008) states:
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 1 (Basic and team leader instruction): “Combatants must: … fight only other combatants”.
In Volume 2 (Instruction for group and patrol leaders), the manual states: “In an international or non-international armed conflict, as a soldier you
must display the following conducts and attitudes: … Fight only the adversary”.
(emphasis in original)
In Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police), the manual states that “attacking combatants and soldiers is allowed”.
Chad’s Instructor’s Manual (2006) states: “Fighting may only be directed against enemy combatants.”
Colombia’s Circular on Fundamental Rules of IHL (1992) states: “Neither the civilian population, as such, nor individual civilians may be made the object of attack. Attacks may only be directed against military objectives.”
Colombia’s Instructors’ Manual (1999) states that it is a rule of combat to “fight only combatants”.
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
Lesson 1 Basic notions of IHL
The principle of distinction specifies who and what can be attacked and who and what cannot be attacked.
- Who and what can be attacked?
Lesson 3. Rules of behaviour in combat
[Basic Rule No. 3]:
Only fight enemy combatants, and only attack military objectives.
- These two rules follow from the principle of distinction, which determines whom to attack during an armed conflict.
In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:
At all times, a distinction must be clearly made between combatants and civilians or the civilian population as such. Combatants can be attacked of course, insofar as they are not hors de combat
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
Combatants are legitimate objectives and can be attacked, unless they have been captured, have surrendered, have clearly expressed their intention to surrender or are hors de combat, provided that they abstain from any hostile act and do not attempt to escape.
II.1.4. Airborne troops
Airborne troops are combatants and, consequently, legitimate objectives. They can be attacked while parachuting from aircraft.
Croatia’s LOAC Compendium (1991) includes armed forces among military objectives.
Croatia’s Commanders’ Manual (1992) states: “Combatants may be attacked.”
Djibouti’s Manual on International Humanitarian Law (2004) states under the heading “Rules of Combat”: “Fight only combatants.”
The Dominican Republic’s Military Manual (1980) states that only combatants are proper targets for attack.
Ecuador’s Naval Manual (1989) states that only attacks against combatants and other military objectives are lawful.
France’s LOAC Summary Note (1992) states that combatants are military objectives.
Germany’s Military Manual (1992) provides that military objectives include, in particular, armed forces.
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.”
Guinea’s Soldier’s Manual (2010) states: “Fight only combatants.”
Hungary’s Military Manual (1992) states that armed forces are military objectives.
India’s Army Training Note (1995) defines the term “terrorist” as:
a person who indulges in wanton killing of persons or involves in violence or in the disruption of services or means of communications essential to the community or in damaging property with a view to putting the public or any section of the public in fear, or affecting adversely the harmony between different religious, social, linguistic groups or the sovereignty and integrity of a nation.
According to the Report on the Practice of India, this definition is “intended to help the armed forces to identify the ‘terrorists’ who may be treated as combatants if the situation can be likened to an internal conflict”.
Indonesia’s Air Force Manual (1990) states that a person who is not a member of the armed forces nor a member of a militia but participates in the hostilities is an unlawful combatant and is considered a military objective.
Ireland’s Basic LOAC Guide (2005) states: “Enemy combatants and military objectives only may be the object of an attack.”
Israel’s Manual on the Laws of War (1998) states: “Any soldier (male or female!) in the enemy’s army is a legitimate military target for attack, whether on the battlefield or outside of it.”
Israel’s Manual on the Rules of Warfare (2006) states: “The fundamental rule is that war should be conducted between armies and each army should only attack the army of the enemy.”
The manual further states: “Every soldier (including women soldiers!) in the enemy’s army is a legitimate military target to be attacked on and away from the battlefield.”
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
According to Italy’s IHL Manual (1991), armed forces may be attacked.
Italy’s LOAC Elementary Rules Manual (1991) states: “Combatants may participate directly in hostilities and may be attacked.”
Kenya’s LOAC Manual (1997) states: “Fighting is only to be directed at the enemy combatant.”
Madagascar’s Military Manual (1994) states: “Combatants must fight only enemy combatants.”
Mexico’s Army and Air Force Manual (2009) states:
The underlying idea of this body of law [i.e. IHL] is to humanize war. The three main principles established to this end … [include]:
A. military operations may only be directed against combatants.
Mexico’s IHL Guidelines (2009), in a section titled “Basic rules of conduct in armed conflict”, states: “Fight only enemy combatants”.
The Military Manual (1993) of the Netherlands states: “Operations may only be directed against military objectives.” It adds that “combatants who are part of the armed forces” are military objectives “under all circumstances”.
The Military Handbook (1995) of the Netherlands requires that soldiers “attack only combatants”.
The Military Manual (2005) of the Netherlands states: “Attacks may be directed only against military targets.”
In its chapter on methods and means of warfare, the manual states: “Operations may be directed only at combatants and military targets.”
New Zealand’s Military Manual (1992) provides that attacks must be directed against military objectives and that combatants are military objectives.
Nigeria’s Military Manual (1994) and Soldiers’ Code of Conduct state that combatants must “fight only combatants”.
Peru’s IHL Manual (2004) states: “Non-protected persons … [include] all combatants who take a direct part in the hostilities.”
Peru’s IHL and Human Rights Manual (2010) states: “Non-protected persons are combatants who directly participate in hostilities.”
The Soldier’s Rules (1989) of the Philippines requires soldiers to “fight only enemy combatants”.
The Joint Circular on Adherence to IHL and Human Rights (1991) of the Philippines states:
When the use of armed force is inevitable, strict controls must be exercised to insure that only reasonable force necessary for mission accomplishment shall be taken and shall be directed only against hostile elements, not against civilians or non-combatants.
The AFP Standing Rules of Engagement (2005) of the Philippines provides:
8. General Rules for the Correct Use of Force towards Mission Accomplishment
l. Once a force is declared hostile by appropriate authority, AFP [Armed Forces of the Philippines] units need not observe a hostile act or a demonstration of hostile intent before engaging that force.
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) states: “By International Humanitarian Law, it is authorized to neutralize enemy forces by reasonable means while in combat.”
Republic of Korea
According to the Republic of Korea’s Military Law Manual (1996), it is only permissible to kill combatants.
Romania’s Soldiers’ Manual (1991) states that combatants must “fight only combatants”.
Sierra Leone’s Instructor Manual (2007) provides: “Fight only enemy soldiers. This means that civilians are not to be attacked and are not to take part in hostilities.”
South Africa’s LOAC Manual (1996) requires soldiers in combat to “fight only enemy combatants”.
South Africa’s Revised Civic Education Manual (2004) requires soldiers in combat to “[f]ight only enemy combatants”.
South Africa’s LOAC Teaching Manual (2008) states: “As was said in a previous learning unit, the most important distinction in the LOAC [law of armed conflict] is the distinction between combatants and non-combatants. Only combatants and military objectives may be made the object of attack.”
In a chapter entitled “Internal and Non-international armed conflict”, in a table comparing human rights law and the law of armed conflict (LOAC), the manual states under LOAC: “Right to life is protected under certain conditions – combatants may lawfully be killed in combat.”
Spain’s LOAC Manual (1996) states that the armed forces of the enemy are considered a legitimate target of attack.
Spain’s LOAC Manual (2007) states: “Attacks must be strictly limited to military objectives.”
The manual further states: “Combatants may only fight other combatants.”
Sweden’s IHL Manual (1991) states: “A distinction shall always be made between persons participating in hostilities and who are thereby legitimate objectives, and members of the civilian population, who may not constitute objectives in warfare.”
Switzerland’s Basic Military Manual (1987) states that only military objectives may be attacked, including enemy armed forces.
Switzerland’s Aide-Memoire on the Ten Basic Rules of the Law of Armed Conflict (2005) states: “I exclusively engage combatants”.
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
10 General provisions
153 All harmful acts perpetrated against the adversary, in particular the killing of enemy units or combatants during hostilities, constitute neither an offence under international law nor a violation of national law (see para. 234 et seq.).
12.1 The principle of distinction
159 Hostilities must be directed exclusively against combatants and military objectives. …
are members of the armed forces of a party to the conflict, with the exception of medical and religious personnel
. In war, they may engage in harmful acts as long as they comply with the rules of the law of armed conflict. Any persons who engage in harmful acts or openly bear weapons may also be fought against.
The Regulation also explains that, in application of the principle of distinction, a wounded combatant who continues to shoot can be shot at because “he remains a combatant until he lays down his weapons”.
The Regulation further states: “Airborne troops – descending by parachute individually or in formation – are considered combatants. They can therefore be attacked even when they are still in the air.”
Togo’s Military Manual (1996) states: “A combatant must fight only enemy combatants.”
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states:
The most important powers of resistance possessed by a belligerent … are his armed forces with their military stores and equipment, and his defence installations of all kinds. The means of reducing these powers of resistance [include] killing and disabling enemy combatants.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004), as amended in 2010, states:
The principle of distinction separates those who may be legitimately the subject of direct attack, namely combatants and those who take a direct part in hostilities, from those who may not be so subject.
United States of America
The US Rules of Engagement for Operation Desert Storm (1991) sets as a basic rule “fight only combatants”.
United States of America
The US Naval Handbook (1995) states that only attacks against combatants and other military objectives are lawful.
United States of America
The US Naval Handbook (2007) states: “Only military objectives may be attacked. Military objectives are combatants … ”.
The Handbook also states: “Lawful combatants … are subject to attack at anytime during hostilities unless they are hors de combat
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states:
The armed forces are an instrument of force and [may be] the direct object of attack. It is permitted to kill, wound or disable their members in combat, except where they surrender or when due to wounds or sickness they are disabled for combat.
The manual further specifies: “It is permitted to directly attack only members of the armed forces and other persons – only if they directly participate in military operations.”
Zimbabwe’s Code of Conduct for Combatants (1993) states: “Fight only combatants.”
The Report on the Practice of Egypt (1997) states that according to Egypt’s Military Criminal Code, “armed gangs and rebels” are considered to be “enemies”.
Ghana’s Armed Forces Act (1962) defines “enemy” as any person engaged in armed operations against any part of the armed forces of Ghana, including armed mutineers, armed rebels, armed rioters and pirates.
India’s Army Act (1950) defines the term “enemy” as including “all armed mutineers, armed rebels, armed rioters, pirates and any person in arms against whom it is the duty of any person subject to military law to act”.
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Articles 48 and 52(2), is a punishable offence.
According to Italy’s Law of War Decree (1938), as amended in 1992, armed forces may be attacked.
Malaysia’s Armed Forces Act (1972) defines the “enemy” as “all persons engaged in armed operations against any of His Majesty’s armed forces or any force co-operating therewith and also includes armed mutineers, armed rebels, armed rioters and pirates”.
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.
Pakistan’s Army Act (1952) defines the “enemy” as including “all armed mutineers, armed rebels, armed rioters, pirates and any person in arms against whom it is the duty of any person subject to the Act to act”.
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 Stub [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.
In examining murder under Germany’s Penal Code, the Federal Prosecutor General also stated:
Colonel (Oberst) Klein’s actions were lawful under international law and therefore justified under domestic criminal law [hence not constituting murder] …
In the assessment of the lawfulness of military attacks in non-international armed conflict which result in the killing of persons, the victims’ status under the international law of armed conflict is of particular relevance. One must distinguish whether the victims are armed fighters of the adverse party, civilians directly participating in hostilities, or other civilians. Persons who belong to the first two categories are in principle legitimate targets of military attacks.
In its judgment in the Public Committee against Torture in Israel case
in 2006, Israel’s High Court of Justice stated: “In general, combatants and military objectives are legitimate targets for military attack. Their lives and bodies are endangered by the combat. They can be killed and wounded.”
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
Upon ratification of the 1977 Additional Protocol I, Australia stated:
It is the understanding of Australia that the first sentence of paragraph 2 of Article 52 is not intended to, nor does it, deal with the question of incidental or collateral damage resulting from an attack directed against a military objective.
Upon ratification of the 1977 Additional Protocol I, Canada stated:
It is the understanding of the Government of Canada in relation to Article 52 that … the first sentence of paragraph 2 of the Article is not intended to, nor does it, deal with the question of incidental or collateral damage resulting from an attack directed against a military objective.
At the CDDH, Canada stated that the first sentence of Article 47(2) of the draft Additional Protocol I (now Article 52(2)) “prohibits only attacks that could be directed against non-military objectives. It does not deal with the result of a legitimate attack on military objectives and incidental damage that such attack may cause.”
In reaction to an article in the press, the Office of the Human Rights Adviser in the Office of the President of Colombia stated:
In a non-international armed conflict, civilians can take up arms and form armed rebel groups, putting themselves outside the laws of the country. They thus become combatants which the State can attack and fight against with perfect legitimacy. As a result, such rebels are criminals and combatants at the same time.
Colombia’s Defensoría del Pueblo (Ombudsman’s Office), with respect to “convivir”, considered that:
These organizations, nurtured by the national government itself, contribute nothing to the immunity of the civilian population, since they involve citizens in the armed conflict, divesting them of their protected status and making them into legitimate targets of attack … In the view of the Ombudsman’s Office, the operation of the Convivir
cooperatives means that civilians participate directly in the armed conflict, thereby becoming combatants.
The Report on the Practice of Colombia states:
In Colombia, communal guard and private security services have been created under the name “convivir
”. These services take the form of rural security cooperatives composed of individuals whom the State has authorized to bear arms, and who collaborate with the authorities by providing information to the public security forces concerning the activities of the guerrilla organizations. There is a public debate over the question of whether the members of these services should be considered civilians or combatants.
In 2011, in the History and Geography Textbook for 9th Grade, Djibouti’s Ministry of National Education and Vocational Training, under the heading “Codes and wisdom”, stated: “Kill only those who are armed and only during a conflict.”
Upon ratification of the 1977 Additional Protocol I, France stated:
The Government of the French Republic considers that the first sentence of paragraph 2 of Article 52 does not deal with the question of collateral damage resulting from attacks directed against military objectives.
Germany, Federal Republic of
At the CDDH, the Federal Republic of Germany stated that the first sentence of Article 47(2) of the draft Additional Protocol I (now Article 52(2))
is a restatement of the basic rule contained in Article 43 [now Article 48], namely that the Parties to a conflict shall direct their operations only against military objectives. It does not deal with the question of collateral damage caused by attacks directed against military objectives.
In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) titled “Killing of German nationals by a US drone attack – Intervention of the German judiciary”, Germany’s Federal Government wrote:
15. How does the Federal Government evaluate the legality of acts of targeted killing of persons within the context of international and non-international armed conflicts …?
… [M]embers of the opposing armed forces (combatants) in international armed conflict and, in non-international armed conflict, members of organized armed groups exercising a continuous combat function may be lawfully targeted at all times as enemy fighters under international humanitarian law, including with the use of lethal force.
According to the Report on the Practice of India, “any person in arms and acting against governmental authority” or “who contributes towards the furtherance of armed conflict” would fall within the definition of enemy and lose protection.
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 that “by definition, the principle of distinction does not forbid the targeting of combatants”.
[footnote in original omitted]
In July 2010, in a second update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009, Israel’s Ministry of Foreign Affairs stated: “The principle of distinction is a core element of IDF [Israel Defense Forces] standing orders. All IDF soldiers are instructed that strikes are to be directed only against … combatants”.
In 2010, in a position paper submitted to the Public Commission to Examine the Maritime Incident of 31 May 2010 (Turkel Commission), established by the Israeli Government to examine the Gaza flotilla incident, Israel’s Military Advocate General stated:
[T]he law of armed conflict is based, inter alia
, upon the fundamental principles of distinction and proportionality. According to the first principle, a person who belongs to the armed forces of the opposing side constitutes a legitimate target for attack, and therefore he can be attacked intentionally and directly, in order to kill him or wound him, and thus take him out of the “cycle of combat.”
Upon ratification of the 1977 Additional Protocol I, Italy declared:
The first sentence of paragraph 2 of [Article 52] prohibits only such attacks as may be directed against non-military objectives. Such a sentence does not deal with the question of collateral damage caused by attacks directed against military objectives.
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 gives a list of principles to apply in military action, among which is the obligation of the armed forces to fight only combatants.
The Report on the Practice of Malaysia states that attacks should only be “directed against combatant targets which shall be distinguished and confirmed”.
In 2010, during the consideration of the Status of the 1977 Additional Protocols by the Sixth Committee of the UN General Assembly, a statement of the delegation of Malaysia was summarized by the Committee in its records as follows:
8. [The delegate of Malaysia] said that …
10. … [t]he laws of naval warfare incorporated the fundamental principles of international humanitarian law, including necessity and proportionality …
11. [In the case of the attacks by the Israel Defense Forces on the Mavi Marmara and five accompanying vessels in May 2010] … [n]aval forces were … under an obligation to … limit attacks to military objectives.
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”.
At the CDDH, the Netherlands stated that the first sentence of Article 47(2) of the draft Additional Protocol I (now Article 52(2)) “prohibits only such attacks as may be directed against non-military objectives and consequently does not deal with the question of collateral damage caused by attacks directed against military objectives”.
Upon ratification of the 1977 Additional Protocol I, New Zealand stated:
The first sentence of paragraph 2 of [Article 52] is not intended to, nor does it, deal with the question of incidental or collateral damage resulting from an attack directed against a military objective.
Serbia and Montenegro
In its oral pleadings before the ICJ in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro) in 2006, Serbia and Montenegro noted:
As for the events in Srebrenica in July 1995, it was never denied before the Tribunal for the former Yugoslavia that the men killed were of military age. However, no one knows and no one has ever sought to determine the number of soldiers in the column which left Srebrenica. No one knows and no one has ever sought to determine how many men were killed in combat. These questions have to be answered before the act can be given legal characterization. The killing of men in combat in wartime is not a criminal act; unfortunately, it is the legitimate aim of the military operation.
United Kingdom of Great Britain and Northern Ireland
Upon ratification of the 1977 Additional Protocol I, the United Kingdom stated:
It is the understanding of the United Kingdom that … the first sentence of paragraph 2 [of Article 52] prohibits only such attacks as may be directed against non-military objectives; it does not deal with the question of collateral damage resulting from attacks directed against military objectives.
United Kingdom of Great Britain and Northern Ireland
At the CDDH, the United Kingdom stated that it did not interpret the obligation in the first sentence of Article 47(2) of the draft Additional Protocol I (now Article 52(2))
as dealing with the question of incidental damage caused by attacks directed against military objectives. In its view, the purpose of the first sentence of the paragraph was to prohibit only such attacks as might be directed against non-military objectives.
United Kingdom of Great Britain and Northern Ireland
In 2003, in reply to an oral question in the House of Lords asking “what in the circumstances of the Iraq of today constitutes the enemy”, the UK Parliamentary Under-Secretary of State for Defence stated: “My Lords, the potential enemy are all those, wherever and whoever they are, who seek to engage British forces in a hostile manner.”
United Kingdom of Great Britain and Northern Ireland
The UK Government Strategy on the Protection of Civilians in Armed Conflict (2010) states: “IHL requires parties to a conflict to respect and protect civilians. In the conduct of military operations they must distinguish at all times between combatants and civilians, and only direct attacks against suspected combatants”.
United States of America
At the CDDH, the United States stated that the first sentence of Article 47(2) of the draft Additional Protocol I (now Article 52(2)) “prohibits only such attacks as may be directed against non-military objectives. It does not deal with the question of collateral damage caused by attacks directed against military objectives.”
United States of America
In March 2010, in a speech given at the Annual Meeting of the American Society of International Law, the Legal Adviser of the US State Department stated:
Recently, a number of legal objections have been raised against U.S. targeting practices. …
First, some have suggested that the very act of targeting
a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.
[emphasis in original]
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kordić and Čerkez case in 2004, the ICTY Appeals Chamber stated:
Particular attention has to be paid to the situation of members of a Territorial Defence (TO) and as to whether they are to be considered as combatants at all times during the conflict or only when they directly take part in hostilities, that is, when they participate in acts of war which by nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy’s armed forces … [T]he Appeals Chamber considers that members of the armed forces resting in their homes in the area of the conflict, as well as members of the TO residing in their homes, remain combatants whether or not they are in combat, or for the time being armed.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Galić case
in 2003, the ICTY Trial Chamber stated: “Combatants … are considered to be legitimate military targets.”
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “Combatants may be attacked.”
Sudan People’s Liberation Movement/Army (SPLM/A)
The Penal and Disciplinary Laws (1984) of the SPLM/A state that the following are “declared enemies of the people and therefore target of the SPLA/SPLM”:
a) The incumbent administration of Jaafer Mohammed Nimeiri, its appendages and supporting institutions.
b) Any subsequent reactionary administration that may emerge while the revolutionary war is still being waged.
c) Any individual or group of individuals directly or indirectly cooperating with the autocratic regime in Khartoum in order to sustain or consolidate its rule and to undermine the objectives and efforts of the People’s Revolution.
d) Any individual or group of individuals who wage counter-revolutionary war against the SPLA/SPLM or who circulate any subversive literature, verbally or in written form against the SPLA/SPLM with the intent to discredit it or turn public opinion against it.
e) Persons acting as agents or spies for the Sudan Government.
f) Armed bandits that operate to rob ordinary citizens, rape their women or commit any other crime against them, their movable or immovable properties or any other property of the People’s revolution.
g) Individuals or groups of people who propagate or advocate ideas, ideologies or philosophies or organize societies and organizations inside the country or abroad, that tend to uphold or perpetuate the oppression of the people or their exploitation by the Khartoum regime or by any other system of similar nature.