Indiscriminate attack

In international humanitarian law ¹³ and international criminal law, an indiscriminate attack is a military attack that fails to distinguish between military objectives and protected (civilian) objects. Indiscriminate attacks strike both military and protected objects alike, thus violating the principle of distinction between combatants and civilians. They differ from direct (or deliberate) attacks against 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, nuclear weapons), and cases in which the attack is disproportionate, because it is likely to cause excessive civilian casualties and damages to protected objects.

Indiscriminate attacks are prohibited both by the Geneva Conventions Additional Protocol I (1977) and by customary international 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.^[1]

Protected 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.^[2] 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,^[3] 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.^[4]

Indiscriminate attacks strike miliary objects and protected objects alike, thus violating the principle of distinction between combatants and civilians.^{[note 1]} 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^[5] and conducts the operation without regard for any effect it may have on the civilians.^[6] 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.^[7]

The notion of indiscriminate attack is defined in Article 51 Geneva Conventions Additional Protocol I (1977).^{[note 2]} Indiscriminate attacks are engaged in by employing either tactics or weapons that are indiscriminate, and by launching attacks that are disproportionate.

Examples of the first kind include releasing bombs over enemy territory in the hope of incidentally striking a military objective,^[1] 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,^[5] and using inherently indiscriminate weapons such as cluster munitions and anti-personnel landmines without taking necessary precautions.^[8] 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.^[9]

Indiscriminate attacks also include attacks that violate the proportionality rule^[10]: the so-called disproportionate attacks.^[11] In the past, once an attack was aimed at a military objective, any inevitable harm caused to civilians and civilian objects was accepted as "collateral damage".^[12] Under current international humanitarian law, however, attacks against a legitimate military objective that lead to collateral damages are subject to the principle of proportionality:^[10][13][14] 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.^{[note 3]}

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^{[note 2]} and is generally considered a norm of customary international law.^[15][16] 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 law is applicable in both international and non-international armed conflicts (civil wars)^[11][17][18] and is also applicable to states that are not party to Additional Protocol I, such as India and the United States.^[16] The prohibition of indiscriminate attacks can also be construed as a necessary consequence of the principle of distinction between combatants and civilians.^[19] The principle of distinction belongs to customary international 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.^[14]

The prohibition of indiscriminate attacks is established in numerous national military manuals as well as supported by official statements and reported practice; carry out such attacks is a criminal offence under the legislation of several countries^[16]

Indiscriminate attacks are also defined and punished as a war crime under the Rome Statute of the International Criminal Court.^{[note 4]}

Notes

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