In international humanitarian law, an indiscriminate attack is a military attack that fails to distinguish between legitimate military targets and protected persons. Indiscriminate attacks strike both legitimate military and protected objects alike, thus violating the principle of distinction between combatants and protected civilians. They differ from direct (or deliberate) attacks against protected civilians and encompass cases in which the perpetrators are indifferent as to the nature of the target, cases in which the perpetrators use tactics or weapons that are inherently indiscriminate (e.g., cluster munitions, anti-personnel mines, and nuclear weapons), and cases in which the attack is disproportionate, because it is likely to cause excessive protected civilian casualties and damages to protected objects.
Indiscriminate attacks are prohibited both by the Geneva Conventions Additional Protocol I (1977) and by customary international humanitarian law. They constitute a war crime under the Rome Statute of the International Criminal Court, and the perpetrators can be prosecuted and held responsible in international and domestic courts.
Concept
Indiscriminate attacks are military attacks that neglect the distinction between legitimate military targets, on the one side, and persons and objects that enjoy protection under international humanitarian law, on the other.: "Indiscriminate attacks are those that fail to take adequate cognizance of the required distinction between lawful targets and persons and objects that enjoy protection under IHL." (See protected persons for more information.)
Protected persons and objects include civilians and civilian objects that do not make an effective contribution to military action and whose destruction does not offer a definite military advantage. Protected objects under international humanitarian law include also objects indispensable to the survival of the civilian population, cultural objects and places of worship, undefended towns, villages, dwellings, or building, works and installations containing dangerous forces, such as nuclear plants, dams and dikes, and the natural environment, which should not be exposed to widespread, long-term, and severe damage.
Indiscriminate attacks strike military objects and protected objects alike, thus violating the principle of distinction between combatants and protected civilians.Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.Article 48. Basic ruleIn 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 objects and military objectives and accordingly shall direct their operations only against military objectives. Contrary to direct attacks against civilian objects, where the attacker is deliberately trying to hit a civilian object (e.g. to spread terror and break the morale of the population), indiscriminate attacks imply that the attacker is indifferent as to whether the targets are military or not: "The difference between indiscriminate and direct attacks against protected objectives is that in direct attacks the attacker is deliberately trying to target civilians (Civilian Population in Armed Conflict), whereas an indiscriminate attack implies that the attacker is indifferent as to whether the targets are civilians or not, civilian objects or military targets" and conducts the operation without regard for any effect it may have on the civilians., quoting and commenting the Additional Protocol I to the Geneva Conventions of 1949 and other sources of international humanitarian law on the principle of proportionality: an attack is indiscriminate if it "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated." Essential to the notion of indiscriminate attack is the state of mind of the attacker, which must be assessed taking into account the so-called fog of war, that is, that the information available at the time of the attack might have been faulty or incomplete.
The notion of indiscriminate attack is defined in Article 51 Geneva Conventions Additional Protocol I (1977).Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.Article 51. Protection of the civilian population (...)
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
5. Among others, the following types of attacks are to be considered as indiscriminate:
(a) an attack by bombardment by any methods or means which treats as a single military objective 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; and
(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Indiscriminate attacks are engaged in by employing either tactics or weapons that are indiscriminate, and by launching attacks that are disproportionate.: "Indiscriminate attacks (...) are engaged in by employing either tactics or weapons that are indiscriminate."
Examples of the first kind include releasing bombs over enemy territory in the hope of incidentally striking a military objective, firing blindly without ensuring that the target is of military nature, conducting air strikes in situations of limited sight, launching an attack with imprecise weapons against a military objective that is closely surrounded by civilian objects, and using inherently indiscriminate weapons such as cluster munitions and anti-personnel landmines without taking necessary precautions. Also the use of nuclear weapons, while not being as such prohibited under current customary international law, will usually violate the ban on indiscriminate attacks.
Indiscriminate attacks also include attacks that violate the proportionality rule: the so-called disproportionate attacks. Until the adoption of Protocol I, once an attack was aimed at a military objective, any inevitable harm caused to protected civilians and civilian objects during hostilities was accepted as "collateral damage". Under current international humanitarian law, however, attacks against a legitimate military objective that lead to collateral damages are subject to the principle of proportionality: losses to the civilian population and damage to civilian objects must not be "excessive in relation to the concrete and direct military advantage anticipated" from the attack, as stated in Article 51 Protocol I. This basic principle is expressed also in Article 57.Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.Article 57. Precautions in attack (...) 2. With respect to attacks, the following precautions shall be taken:
(a) those who plan or decide upon an attack shall: (...)
(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects;
(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;
(b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;
3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.
It can be difficult to retrospectively evaluate decisions that balance the expected military advantage against the collateral loss of civilian lives, which partly explains why prosecutions before national and international criminal courts for wartime attacks on civilians are scarce and difficult, as has been noted by several authors.
Legal status in international and national law The prohibition of indiscriminate attacks is set forth in Article 51(4) and (5) of Additional Protocol I and is generally considered a norm of customary international humanitarian law. While Protocol I is applicable only in international armed conflict and only to the signatory states of that international treaty, the prohibition of indiscriminate attacks as a rule of customary international humanitarian law is applicable in both international and non-international armed conflicts (civil wars) and is also applicable to states that are not party to Additional Protocol I, such as India and the United States. The prohibition of indiscriminate attacks can also be construed as a necessary consequence of the principle of distinction between combatants and civilians. The principle of distinction belongs to customary international humanitarian law and justifies a number of analogous rules including prohibitions or limitations on starvation, sieges, and reprisals against civilians, civilian objects, and other protected persons and objects.
The prohibition of indiscriminate attacks is established in numerous national military manuals as well as supported by official statements and reported practice; to carry out such attacks is a criminal offense under the legislation of several countries
Indiscriminate attacks in international armed conflicts are also defined and punished as a war crime under the Rome Statute of the International Criminal Court.Rome Statute of the International Criminal Court, adopted 17 July 1998, entered in to force 1 July 2002.Article 8. War crimes (...)2. For the purpose of this Statute, "war crimes" means:(...) (b) (...) (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (...) (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; (...)
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