Practice Relating to Rule 13. Area Bombardment

Among others, the following types of attacks are to be considered as indiscriminate:

An attack by bombardment by any methods or means which treats as a single military objective a number of clearly separate and distinct military objectives located in a city, town, village, or other area containing a concentration of civilians or civilian objects is to be considered as indiscriminate. 

The bombardment of cities, towns, villages, dwellings or buildings not in the immediate neighbourhood of the operations of land forces is prohibited. In cases where [military objectives] are so situated, that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment. 

It is forbidden to attack without distinction, as a single objective, an area including several military objectives at a distance from one another where elements of the civilian population, or dwellings, are situated in between the said military objectives. 

An example of an indiscriminate attack would be to bomb a city, town, village or area as though it were a single military objective when it contains a number of separate and distinct military objectives mixed in with a similar concentration of civilians and civilian objects. 

An example of an indiscriminate attack would be to bomb a city, town, village or area as though it were a single military objective when it contains a number of separate and distinct military objectives mixed in with a similar concentration of civilians and civilian objects. 

An attack by bombardment by any methods or means which treats as a single legitimate target a number of clearly separated and distinct legitimate targets located in a city, town, village or other area containing a similar concentration of civilians or civilian objects. 

1. Indiscriminate attacks are those that may strike legitimate targets and civilians or civilian objects without distinction. They are prohibited …

2. The following are examples of indiscriminate attacks:

The bombardment of any legitimate target must not be “indiscriminate.” It is prohibited to carry out an attack by bombardment by any means (aircraft, artillery, mortars, naval fire, missiles, etc.) that treats as a single legitimate target a number of clearly separated and distinct legitimate targets in an urban area or an area containing a similar concentration of civilians or civilian objects. 

1. The bombardment of any legitimate target must not be “indiscriminate”. It is prohibited to carry out an attack by bombardment by any means (such as aircraft, naval fire and missiles) that treats as a single legitimate target a number of clearly separated and distinct legitimate targets in an urban area or an area containing a similar concentration of civilians or civilian objects.

2. This prohibition applies to shore bombardments by naval forces. In this respect, “shore bombardments” include bombardments from both ships and aircraft. 

Indiscriminate attacks are those that can strike legitimate objectives as well as civilians and civilian objects without distinction. They are prohibited. …

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Examples of indiscriminate attacks:

The following attacks are also considered indiscriminate:

It is prohibited to launch an attack that treats a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects as a single military objective. 

Any bombardment of cities, towns, villages, habitations and buildings which are not situated in the immediate vicinity of the operations of the land forces is forbidden. Should the specified objectives be so situated that they could not be bombed without an undiscriminating bombardment of the civilian population occurring as a result, the aircraft must abstain from bombing. 

The bombardment of towns, villages, habitations and buildings which are not in the immediate proximity of the operations of the land forces is prohibited. Should the specified objectives be so situated that they could not be bombed without an undiscriminating bombardment of the civilian population occurring as a result, the aircrafts must abstain from bombing. 

It is prohibited to attack as a single military objective (target) a number of clearly separated and distinct military objectives (targets) located in a built-up area or place containing a concentration of protected persons and objects, and launch any indiscriminate attacks. 

[1977] Additional Protocol I article 51.5 specifically states that, amongst others, the following types of attacks are indiscriminate:

An attack that treats a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects as a single military objective is considered to be an indiscriminate attack and therefore prohibited. 

If the military objectives are located in a densely-populated area which has been evacuated only to a limited extent if at all, area bombardment may not be employed since this would be a breach of the basic rule prohibiting indiscriminate attack. Moreover, area bombardment would most probably lead to excessive injury and losses, and would thus be a breach of the proportionality rule. 

It is prohibited to attack as a single target (objective) several clearly separated and distinct military objectives located in a city, village or other area containing a concentration of persons and objects protected by international humanitarian law. 

The following are examples of indiscriminate attacks:

Any legal justification of target-area bombing must be based on two factors. The first must be the fact that the area is so preponderantly used for war industry as to impress that character on the whole of the neighborhood, making it essentially an indivisible whole. The second factor must be that the area is so heavily defended from air attack that the selection of specific targets within the area is impracticable.

In such circumstances, the whole area might be regarded as a defended place from the standpoint of attack from the air, and its status, for that purpose, is assimilated to that of a defended place attacked by land troops. In the latter case, the attacking force may attack the whole of the defended area in order to overcome the defense, and incurs no responsibility for unavoidable damage to civilians and nonmilitary property caused by the seeking-out of military objectives in the bombardment. Legal justification for target-area bombing would appear to rest upon analogous reasoning. 

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]. 

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]. 

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. 

26.3. The following are war crimes:

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.

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The accused’s position is stated to be that this Court has no jurisdiction to try him.

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… 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. …

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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.

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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. …

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… 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.

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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.

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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. …

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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

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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.

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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. …

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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].

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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 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.

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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:

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]

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. 

[The] provisions, which are outlined below, are generally recognized as being an expression of customary international law. …

The purpose of international humanitarian law is to protect the victims of war as much as possible. …

It follows from API [1977 Additional Protocol I] that military attacks that do not respect the distinction between civilians and military targets are illegal because of their indiscriminate nature. Such indiscriminate attacks are defined in API … Article 51([5]). 

Coalition operations are clearly continuing. I made that clear in my statement, and I do not think that any Member of the House would expect me to anticipate the nature of those operations save to say that whatever targets are addressed will be targets associated with Saddam Hussein’s regime. I made that clear yesterday to the House, and I repeat it again today. We will not engage in indiscriminate so-called carpet bombing. Each of the targets will be individually addressed and attacked. 

not only to a separation of two or more military objectives, which could be observed or which were usually separated, but to include the element of a significant distance. Moreover, that distance should be at least sufficiently large to permit the individual military objectives to be attacked separately. 

Gravely concerned at the continued deterioration of the situation in the occupied Palestinian territory and at the gross violations of human rights and international humanitarian law, in particular … the shelling of Palestinian residential districts from warplanes, tanks and Israeli battleships, the conducting of incursions into towns and camps and the killing of men, women and children there as was the case lately in the camps of Jenin, Balata, Khan Younis, Rafah, Ramallah, Gaza, Nablus, al-Birah, al-Ama’ri, Jabaliya, Bethlehem, Dheisheh, Hay al-Daraj and Hay al-Zaitoun in the city of Gaza.