TRC Final Report

Volume 6

Section 5

Chapter 1

Part Appendix2

APPENDIX 2

These Conventions and Protocols must be read together with the 1980 ‘Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be excessively Injurious or to have Indiscriminate Effects’ and the concomitant ‘Protocol on Prohibitions or Restrictions on the use of Mines, Booby Traps and Other Devices’ (Protocol II).

Article 3 of Protocol II reads as follows:

General restrictions on the use of mines, booby traps and other devices

This Article applies to:

( a ) Mines;

( b ) Booby-traps; and

(c) Other devices.

1 . It is prohibited in all circumstances to direct weapons to which this Article applies, either in offence, defence or by way of reprisals, against the civilian population as such or against individual civilians.

2 . The indiscriminate use of weapons to which this Article applies is prohibited. Indiscriminate use is any placement of such weapons:

a. Which is not on, or directed at, a military objective; or

b. Which employs a method or means of delivery which cannot be directed at a specific military objective; or

c. 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.

3 . All feasible precautions shall be taken to protect civilians from the effects of weapons to which this Article applies. Feasible precautions are those pre cautions, which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.

At Article 2, paragraphs 4 and 5, ‘Other devices’, ‘Military Objective’ and ‘Civilian objects’ are defined in the following terms:

‘Other devices’ means manually emplaced munitions and devices designed to kill, injure or damage and which are actuated by remote control or automatically after a lapse of time.

‘Military objective’ means, so far as objects are concerned, any object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

‘Civilian objects’ a re all objects which are not military objectives as defined in paragraph 4.

Frederic de Mulinen, in his handbook published by the ICRC²⁰ makes the following statement:

43. Sparing of Civilian Persons and Objects:

Constant care shall be taken to spare the civilian population, civilian persons and civilian objects.

44. Information needed:

The Commander shall keep himself informed on concentrations of civilian persons, important civilian objects and specially protected establishments.

50 . Conduct of Attack

51. Choice of Objectives;

Within tactically equivalent alternatives, the directions, objectives and targets of attack shall be chosen so as to cause the least civilian damage.

5 2 . Verification :

The Military character of the objective or target shall be verified by reconnaissance and target identification

5 3 . Weapon s

To restrict civilian casualties and damages, the means of combatant weapons shall be adapted to the target

Thus an operative or soldier who operates outside of the scope of the Conventions is punishable in accordance with ordinary law and loses the protection of the status of a combatant.