Practice Relating to Rule 9. Definition of Civilian Objects

4.02 – Definitions

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4.45 – Civilian objects are all objects which are not military objectives. 

530 – [The 1977 Additional Protocol I] defines “civilian objects” as all objects which are not military objectives.

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916 – Civilian property or objectives are defined as anything which are not military objectives. 

5.34 [The 1977 Additional Protocol I] defines “civilian objects.” as all objects which are not military objectives.

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9.16 Civilian property or objectives are defined as anything that are not military objectives. 

A civilian object … is every object that is not a military objective. … In sum, it may be said that civilian objects are those objects which by their nature, location, purpose or use do not make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, do not offer a definite military advantage.  [emphasis in original]

II.1 Protected persons and objects

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- Civilian objects: objects which are not regarded as military objectives. For example: a school, a dwelling, a granary, a civilian means of transportation, etc. 

III.1. Civilian objects

By civilian objects, one means all objects which are not military objectives. …

One can cite as examples of civilian objects:

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. 

civilian objects are objects that are not military objectives.

In case of doubt whether an object which is normally dedicated to civilian purposes is being used for military purposes, the object shall be considered a civilian object. 

Seen against the background of the enormous destruction of civilian property associated with the Second World War and all later conflicts, application of [Article 52 of the 1977 Additional Protocol I] could bring about an appreciable humanizing of warfare – people would no longer need to experience the catastrophe of bombed-out homes and ruined cities. However, Article 52 cannot be expected to bring about such great changes in warfare … [An] important reason [for this] is the lack of a definition of civilian objectives. 

Civilian objects are all objects which are not military objectives. Objects that are normally civilian may become military objectives depending on the situation … In case of doubt whether a civilian object is being used for military purposes, it shall be presumed to be civilian. 

5.24.1. “Civilian objects are all objects which are not military objectives …”

5.24.2. The term “civilian objects” would normally include cities, towns, and villages as such but not military objectives within those places. It also includes foodstuffs and food producing areas, springs, wells, water works and other water sources, buildings and facilities used by civilians (so long as they do not fall within the definition of military objectives) such as housing estates and houses; apartment blocks and flats; factories and workshops producing goods of no military significance; offices, shops, markets and warehouses; farms and stables; schools, museums, places of worship and other similar buildings; and means of transport such as civil aircraft, cars, railway trains, trams, and buses. Special protection is also given to hospitals, internment and prisoner of war camps. 

15.16.1. There is no definition of civilian objects nor is the term used in the treaties dealing with internal armed conflicts but the principles of military necessity and humanity require attacks to be limited to military objectives. Thus attacks on the following are prohibited unless they are being used for military purposes: civilian dwellings, shops, schools and other places of non-military business, places of recreation and worship, means of transportation, cultural property, hospitals and medical establishments and units.

15.16.2. UN General Assembly Resolution 2675, which was unanimously adopted and applies to all armed conflicts, can be regarded as evidence of state practice. Paragraph 5 of the resolution states: “dwellings and other installations that are used only by the civilian population should not be the object of military operations.” The principle of military necessity demands that civilian property may only be destroyed, or requisitioned for use, for necessary military purposes.

15.16.3. The old practices that tolerated during sieges the bombardment of civilian buildings (other than places of worship), hospitals, cultural property, indispensable objects and works containing dangerous forces, have not survived. 

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 following is to be considered regarding the subjective element of § 11 (1) (3) VStGB [which states that carrying out an attack by military means and definitely anticipating that the attack will cause death or injury to civilians or damage to civilian objects on a scale out of proportion to the concrete and direct overall military advantage anticipated is a war crime in international and non-international armed conflict]:

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Civilian objects are all objects which are not military objectives according to Art. 52 (1) para. 1 sentence 2 AP I [1977 Additional Protocol I] and customary international law. 

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. 

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. 

Damage to property [caused by Hizbullah’s missile attacks] was also heavy: in total, some 12,000 civilian buildings were damaged, among them about 400 public buildings, while about 2,000 private homes and apartments were completely destroyed. In addition, 23 schools, four kindergartens and two community centers were damaged. During the conflict, hospitals were damaged in Nahariya, Haifa, Safed and Mizra. One of them – a psychiatric hospital – had to be evacuated.

Significant damage was also inflicted on infrastructure: sewage plants were damaged and, in some cases, sewage had to be released into the sea and atmosphere (by burning). Over 50 km of roads were damaged and 2 km² of cultivated forest, as well as 40 km² of natural woodland, were destroyed by fires caused by the missiles. All these clearly constitute civilian objects, which are protected from attack by international law, and whose destruction served no military purpose whatsoever. 

For purposes of the Nicaraguan conflict, the following should be considered civilian objects immune from direct attack: