Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants
Section C. Attacks against civilians
Germany’s Military Manual (1992) states: “The prohibition of indiscriminate warfare implies that the civilian population as such as well as individual civilians shall not be the object of attack and that they shall be spared as far as possible.”
Germany’s IHL Manual (1996) states: “Pursuant to Article 85(3) of Additional Protocol I, attacks against the civilian population constitute serious violations of international law and therefore war crimes.”
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 …
Civilians who do not take part in combat operations shall be respected and protected. They may neither be attacked nor killed, wounded or captured.
Germany’s Law Introducing the International Crimes Code (2002) punishes anyone who, in connection with an international or a non-international armed conflict, “directs an attack by military means against the civilian population as such or against individual civilians not taking a direct part in hostilities”.
In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force in Afghanistan stolen by the Taliban near Kunduz and which resulted in the deaths of a number of civilians. The Federal Prosecutor General stated:
Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst
) Klein and Company Sergeant Major (Hauptfeldwebel
) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter.
The Federal Prosecutor General further stated:
Other crimes under the VStGB
Colonel (Oberst) Klein is not criminally responsible … for other crimes listed in the International Crimes Code. …
Criminal responsibility under § 11 para. 1 no. 1 VStGB (attacks against the civilian population or against individual civilians who are not directly participating in attacks) is excluded. … [T]he attack was not directed against civilians as such, but against military objectives. If civilians are injured as a side effect of such a military attack, only criminal responsibility under § 11 para. 1 no. 3, not § 11 para. 1 no. 1 VStGB is pertinent.
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 …
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. … Only civilians who are not directly participating in hostilities benefit from the protection of international humanitarian law.
In 1987, all parties in the German parliament condemned the Soviet “attacks against the civilian population, in particular against women and children” in Afghanistan.
In an explanatory memorandum submitted to the German parliament in 1990 in the context of the ratification procedure of the Additional Protocols, the German Government stated, with reference to Article 51(2) of the 1977 Additional Protocol I, that the prohibition of direct attacks on individual civilians or the civilian population was an integral part of customary international law.
In 1991, in reply to a question in parliament, the German Minister of Foreign Affairs condemned “the continued military engagements of Turkish troops against the civilian population in Kurdish areas as a serious violation of international law”.
In 1991, the German Chancellor described the missile attack carried out by Iraq against populated areas as a “brutal act of terror”.
A few days later, the German President denounced Iraq’s continued attacks against the civilian population of Israel as “particularly abhorrent”.
In 1995, the German Minister of Foreign Affairs denounced the attack on the marketplace in Sarajevo in Bosnia and Herzegovina and stated: “The authors of this barbaric attack must be brought to account for their actions with all due consequences.”
In 1995, the German Minister of Foreign Affairs stated that the restoration of Russian territorial integrity in Chechnya did not justify the conduct of the Russian army in Grozny, namely “the bombardment of civilians and the killing of so many innocent persons”.
In 2009, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) titled “Investigation of serious violations of international humanitarian law in the recent Gaza war”, Germany’s Federal Government wrote:
9. How does the Federal Government assess the firing of rockets at towns and villages in Southern Israel by armed Palestinian groups in Gaza under international law?
Which specific provisions of international humanitarian law were violated by the Palestinian side?
The Federal Government condemns any act of violence and all acts of hostilities directed against civilians, as well as acts of terror. International humanitarian law prohibits attacks against the civilian population as such and against individual civilians.
The Federal Government also wrote:
14. Can the Federal Government confirm or deny that ammunition with white phosphorous has been used in densely populated areas (e.g. Gaza City) and against civilian installations (e.g. the UN), and how does the Federal Government assess such use under international humanitarian law?
The Federal Government is aware of allegations that Israel has used phosphorous weapons in a way that violated international law. This is the subject of a number of investigations, including by Israel. The Federal Government has no information of its own on whether such weapons were used. Smoke ammunition which includes white phosphorus is not prohibited as such under international humanitarian law. But its use must comply with the general rules of international humanitarian law. Hence a direct use against civilians would be unlawful.
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 …?
International humanitarian law distinguishes in international and non-international armed conflicts between, on the one hand, armed forces opposing one another (international armed conflict) or armed forces and opposed organized armed groups (non-international [armed conflict]) and, on the other hand, civilians.
… [C]ivilians may in principle not be directly attacked.