In the application of the laws of war, it is important that there be a general understanding in the world community as to what shall be legitimate military objectives which may be attacked by air bombardment under the limitations imposed by treaty or by customary international law. 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. Here and there someone says that it may one day come about. No writer has been cited who supports this proposition.

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. 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 вЂњit is argued with growing conviction that under contemporary international law members of SWAPO and the ANC are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 ProtocolsвЂќ, is correct. 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. 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 вЂњarmed conflictвЂќ conducted by вЂњpeoplesвЂќ against a вЂњraist regimeвЂќ in the exercise of their вЂњright of self-determinationвЂќ.

If so, it is argued that it would have been incorporated into South African law. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. South Africa is one of the countries which has not acceded to Protocol I. In that war the definition of a military target became overextended and were also applied to telecommunications centres, steel factories, power stations, strategic installations and more. These questions intensified during World War II, when air forces were involved in the extensive bombing of infrastructure. Discussions regarding the distinction between military and non-military targets, and how far it might possible to stretch the limits are very extensive in the modern era. For example, a factory that produces steel and that is used to built tanks, and a factory that produces the raw materials used in the production of gunpowder. However, in between these two extremes lie a whole spectrum of examples that are less clear-cut. A clear military target is, for example, an enemy position and a clear civilian target is a playground. A soldier is an obvious military target, while a little girl playing on the swings in the playground is certainly not.

Prohibition of Certain Types of LandminesДЄ military target for attack is a target that, through its nature, content or use would make an effective contribution to the military actions of the other side, and the neutralisation thereof would give the attacker a clear military advantage.

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