Indiscriminate attacks strike military objects and protected objects alike, thus violating the principle of distinction between combatants and protected civilians. 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 and conducts the operation without regard for any effect it may have on the civilians. 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.
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.
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.
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
The reasons behind the prohibition of indiscriminate attacks were already spelled out by one of the founders of international law, Francisco de Vitoria. A passage of his "Second Relectio on the Indians, or on the Law of War" (1532) can be read as an anticipation of the modern principle of proportionality:
The first attempt at codifying a general prohibition of indiscriminate attacks were the 1923 Hague Rules of Air Warfare, which never came into force. They were drafted under the impression of World War I, where recourse to aerial bombing of cities had first become widespread. Strategic bombing by German forces using airships (such as the Zeppelin raids over England and during the siege of Antwerp) and long-range artillery (the "Big Bertha" cannon) raised the issue of how to contain indiscriminate military attacks. The Hague Rules proposed that in cases where the military targets "are so situated, that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment." While supported by United States and Japan, the Hague Rules were rejected by France and the United Kingdom. At the 1932 World Disarmament Conference, the British government argued that limitations to aerial warfare should not apply to colonies: as Prime Minister David Lloyd George declared, "we insisted on reserving the right to bomb niggers".
The basic provision limiting aerial warfare was set forth in the 1907 Fourth Hague Convention, and forbade any bombardment of undefended towns, but allowed bombardment of defended towns, or towns that were under attack on the ground. According to international law of the time, "indiscriminate bombing of a defended city or a defended area [was] permissible", as the District Court of Tokyo exposed in Ryuichi Shimoda v. The State (1963). As British Prime Minister Neville Chamberlain stated to the House of Commons of the United Kingdom in June 1938: there was "no international code of law with respect to aerial warfare which is the subject of general agreement."
The vast majority of cities were defended and subjected to heavy fire during the war; Heinrich Himmler declared that "No German city will be declared an open city" and hundreds of thousands of civilians died as consequence of massive bombing during the six years of the conflict. From the start, Allied policy was conditioned upon Axis observance of the norm of reciprocity. "Reprisals" could lawfully follow any belligerent's bombardment of civilians, which was the legal ramification of the norm of reciprocity", and with the indiscriminate attacks by German forces against Polish targets during the invasion of Poland that began in September 1939 the norm of reciprocity "was the only guarantor of a fighting chance at survival in the face of an enemy who disregarded important humanitarian principles".
In the last 12 months of the war, Germany introduced the paradigmatic case of indiscriminate weapon: the so-called "flying bombs" or "V-weapons" (V-1 flying bomb, V-2 rockets and V-3 cannon). These long-range ballistic missiles could not be directed at a specific military objective but were pointed in the general direction of large metropolitan areas; they "could hardly hit a particular city, let alone a specific point within them". Equally indiscriminate but less effective were the Japanese Fu-Go incendiary balloons – the first intercontinental weapon. The deadliest indiscriminate weapons used during World War II were by far the atomic bombs detonated by the United States over Hiroshima and Nagasaki.
After the war, the German and Japanese leaderships were not pursued for deliberate and indiscriminate air attacks on the civilian populations. Their bombing campaigns had arguably been paralleled or surpassed by those carried out by the Allies, and in the Nuremberg and Tokyo indictments no attempt was made to frame indiscriminate attacks as war crimes. During the negotiations of the 1949 Geneva Conventions, protection of civilians was a controversial subject, and the British representatives opposed any restriction to the freedom to carry out bombing – at the time, both France and the United Kingdom were engaged in "aerial policing" as part of counterinsurgency efforts in their colonial empires. As a result, the conventions left out the guidelines for the protection of civilians from the effect of hostilities in international conflicts while Common Article 3 provides protection only to the moment the person is under the physical control of a party to a non-international conflict.
Between 1945 and 1977, Western nations carried out intensive bombing campaigns as part of counterinsurgencies in the Global South. These included France in Madagascar during the Malagasy Uprising and Algeria during the Algerian War, the United Kingdom in Malaya during the Malayan Emergency and Kenya during the Mau Mau rebellion and the United States in Korea during the Korean War and Vietnam during the Vietnam War.
A general prohibition of indiscriminate attack in international conflicts was established in the 1977 Additional Protocol I. During the diplomatic conference for the drafting of Protocol I, the possibility was referred to of distinguishing the rules applicable to the aggressor from the rules applicable to the victim of the aggression, but several delegations opposed the proposal, which was eventually rejected by the conference. The diplomatic conference attached great importance to the prohibitions of deliberate and indiscriminate attacks on civilians set forth in Article 51, as is shown by the fact that Article 51 is one of the provisions to which no reservations can be made, and by the fact that its violation is qualified as a "grave breach" amounting to a war crime under Article 85.
At the time of the Gulf War, many legal scholars doubted that Protocol I codified customary international humanitarian law and was therefore binding upon the United States, which had not signed the convention. Human Rights Watch published a report arguing that "many of the Protocol’s provisions", including the prohibition of disproportionate and other indiscriminate attacks, "reaffirm, clarify or otherwise codify pre-existing customary law restraints on methods and means of combat and, thus, are binding on all nations regardless of ratification".
Schmitt 2020, p. 152: "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." - Schmitt, Michael N. (2020). "International Humanitarian Law and the Conduct of Hostilities". In Saul, Ben; Akande, Dapo (eds.). The Oxford guide to international humanitarian law. Oxford, United Kingdom: Oxford University Press. pp. 147–174. ISBN 978-0-19-259748-9. OCLC 1153294179. https://search.worldcat.org/oclc/1153294179
Ambos 2014, p. 150-151. - Ambos, Kai (2014). Treatise on international criminal law. Vol. 2. Oxford, United Kingdom: Oxford University Press. ISBN 978-0-19-965792-6. OCLC 810946816. https://search.worldcat.org/oclc/810946816
Shue 2016, p. 3-5. - Shue, Henry (2016). "Proportionality in War". Fighting Hurt: Rule and Exception in Torture and War. Oxford University Press. pp. 318–329. doi:10.1093/acprof:oso/9780198767626.003.0016. ISBN 978-0-19-876762-6. https://academic.oup.com/book/25497/chapter-abstract/192732269
Ambos 2014, p. 152. - Ambos, Kai (2014). Treatise on international criminal law. Vol. 2. Oxford, United Kingdom: Oxford University Press. ISBN 978-0-19-965792-6. OCLC 810946816. https://search.worldcat.org/oclc/810946816
"Protected Objects and Property". The Practical Guide to Humanitarian Law. Retrieved 28 May 2023. https://guide-humanitarian-law.org/content/article/3/protected-objects-and-property/
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. /wiki/Protocol_I
Bell & Pfeiffer 2011: "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" - Bell, Christine; Pfeiffer, Julia (March 2011). "Indiscriminate Attack". Max Planck Encyclopedia of International Public Law. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e307#
Schmitt 2020, p. 153, 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." - Schmitt, Michael N. (2020). "International Humanitarian Law and the Conduct of Hostilities". In Saul, Ben; Akande, Dapo (eds.). The Oxford guide to international humanitarian law. Oxford, United Kingdom: Oxford University Press. pp. 147–174. ISBN 978-0-19-259748-9. OCLC 1153294179. https://search.worldcat.org/oclc/1153294179
Dinstein 2004, p. 118. - Dinstein, Yoram (2004). The Conduct of Hostilities under the Law of International Armed Conflict. Cambridge University Press. ISBN 978-0-521-54227-2. https://www.cambridge.org/core/books/conduct-of-hostilities-under-the-law-of-international-armed-conflict/6C204C5ECF2FFD93B56DEF54EFE39421
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. /wiki/Protocol_I
Schmitt 2020, p. 152: "Indiscriminate attacks (...) are engaged in by employing either tactics or weapons that are indiscriminate." - Schmitt, Michael N. (2020). "International Humanitarian Law and the Conduct of Hostilities". In Saul, Ben; Akande, Dapo (eds.). The Oxford guide to international humanitarian law. Oxford, United Kingdom: Oxford University Press. pp. 147–174. ISBN 978-0-19-259748-9. OCLC 1153294179. https://search.worldcat.org/oclc/1153294179
Schmitt 2020, p. 152. - Schmitt, Michael N. (2020). "International Humanitarian Law and the Conduct of Hostilities". In Saul, Ben; Akande, Dapo (eds.). The Oxford guide to international humanitarian law. Oxford, United Kingdom: Oxford University Press. pp. 147–174. ISBN 978-0-19-259748-9. OCLC 1153294179. https://search.worldcat.org/oclc/1153294179
Bell & Pfeiffer 2011. - Bell, Christine; Pfeiffer, Julia (March 2011). "Indiscriminate Attack". Max Planck Encyclopedia of International Public Law. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e307#
Sassòli 2019, §§8.391-8.397. - Sassòli, Marco (2019). International humanitarian law: rules, controversies, and solutions to problems arising in warfare. Cheltenham, UK: Edward Elgar Publishing. ISBN 978-1-78643-854-6. OCLC 1076500614. https://search.worldcat.org/oclc/1076500614
Werle & Jessberger 2020, §1533. - Werle, Gerhard; Jessberger, Florian (2020). Principles of international criminal law. Oxford, United Kingdom: Oxford University Press. ISBN 978-0-19-882685-9. OCLC 1153298354. https://search.worldcat.org/oclc/1153298354
Sassòli 2019, §§8.6.1. - Sassòli, Marco (2019). International humanitarian law: rules, controversies, and solutions to problems arising in warfare. Cheltenham, UK: Edward Elgar Publishing. ISBN 978-1-78643-854-6. OCLC 1076500614. https://search.worldcat.org/oclc/1076500614
Moneta 2015. - Moneta, Francesco (2015). "Disproportionate Attacks in International Criminal Law". The Protection of Non-Combatants During Armed Conflict and Safeguarding the Rights of Victims in Post-Conflict Society. Brill-Nijhoff. pp. 261–296. doi:10.1163/9789004236592_012. ISBN 9789004236592. https://doi.org/10.1163%2F9789004236592_012
Dinstein 2004, p. 117. - Dinstein, Yoram (2004). The Conduct of Hostilities under the Law of International Armed Conflict. Cambridge University Press. ISBN 978-0-521-54227-2. https://www.cambridge.org/core/books/conduct-of-hostilities-under-the-law-of-international-armed-conflict/6C204C5ECF2FFD93B56DEF54EFE39421
Sassòli 2019, §§8.6.1. - Sassòli, Marco (2019). International humanitarian law: rules, controversies, and solutions to problems arising in warfare. Cheltenham, UK: Edward Elgar Publishing. ISBN 978-1-78643-854-6. OCLC 1076500614. https://search.worldcat.org/oclc/1076500614
Werle & Jessberger 2020, §1402. - Werle, Gerhard; Jessberger, Florian (2020). Principles of international criminal law. Oxford, United Kingdom: Oxford University Press. ISBN 978-0-19-882685-9. OCLC 1153298354. https://search.worldcat.org/oclc/1153298354
Schmitt 2020, p. 153. - Schmitt, Michael N. (2020). "International Humanitarian Law and the Conduct of Hostilities". In Saul, Ben; Akande, Dapo (eds.). The Oxford guide to international humanitarian law. Oxford, United Kingdom: Oxford University Press. pp. 147–174. ISBN 978-0-19-259748-9. OCLC 1153294179. https://search.worldcat.org/oclc/1153294179
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. /wiki/Protocol_I
Wilt 2019, p. 31. - Wilt, Harmen van der (2019). "Towards a Better Understanding of the Concept of 'Indiscriminate Attack'—How International Criminal Law Can Be of Assistance". Yearbook of International Humanitarian Law. Yearbook of International Humanitarian Law. Vol. 22. The Hague: T.M.C. Asser Press. pp. 29–42. doi:10.1007/978-94-6265-399-3_2. ISBN 978-94-6265-398-6. ISSN 1389-1359. S2CID 228874070. https://link.springer.com/chapter/10.1007/978-94-6265-399-3_2
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. /wiki/Protocol_I
"Customary IHL - Rule 11. Indiscriminate Attacks". ICRC, Customary IHL Database. Retrieved 2022-06-19. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule11
"Customary IHL - Rule 12. Definition of Indiscriminate Attacks". ICRC, Customary IHL Database. Retrieved 2022-08-01. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter3_rule12
Moneta 2015. - Moneta, Francesco (2015). "Disproportionate Attacks in International Criminal Law". The Protection of Non-Combatants During Armed Conflict and Safeguarding the Rights of Victims in Post-Conflict Society. Brill-Nijhoff. pp. 261–296. doi:10.1163/9789004236592_012. ISBN 9789004236592. https://doi.org/10.1163%2F9789004236592_012
Sassòli 2019, §8.319. - Sassòli, Marco (2019). International humanitarian law: rules, controversies, and solutions to problems arising in warfare. Cheltenham, UK: Edward Elgar Publishing. ISBN 978-1-78643-854-6. OCLC 1076500614. https://search.worldcat.org/oclc/1076500614
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"Customary IHL - Rule 12. Definition of Indiscriminate Attacks". ICRC, Customary IHL Database. Retrieved 2022-08-01. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter3_rule12
Sassòli 2019, §7.59. - Sassòli, Marco (2019). International humanitarian law: rules, controversies, and solutions to problems arising in warfare. Cheltenham, UK: Edward Elgar Publishing. ISBN 978-1-78643-854-6. OCLC 1076500614. https://search.worldcat.org/oclc/1076500614
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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; (...) https://en.wikisource.org/wiki/Rome_Statute_of_the_International_Criminal_Court
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