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Distinction (law)

Distinction is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must distinguish between combatants and protected civilians.[1] Combatant in this instance means persons entitled to directly participate in hostilities and thus are not afforded immunity from being directly targeted in situations of armed conflict.[2] Protected civilian in this instance means civilians who are enemy nationals or neutral citizens outside of the territory of a belligerent power.[3]

Article 51.3 of Protocol I to the Geneva Conventions explains that "Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities". Distinction and proportionality are important factors in assessing military necessity in that the harm caused to protected civilians or civilian property must be proportional and not "excessive in relation to the concrete and direct military advantage anticipated" by an attack on a military objective.[4]

Codification

Distinction is covered by Protocol I (Additional to the Geneva Conventions), Chapter II: "Civilians and Civilian Population". Article 48 set forth the principle of distinction by establishing that "[T]he Parties to the conflict shall at all times distinguish between the civilian population and combatants."[5] Article 50 defines who is a civilian and what is a civilian population; article 51 describes the protection which should be given to civilian populations; and chapter III regulates the targeting of civilian objects. Article 8(2)(b)(i) of the Rome Statute of the International Criminal Court also prohibits attack directed against civilians. Not all states have ratified Protocol I or the Rome Statute, but it is an accepted principle of international humanitarian law that the direct targeting of civilians is a breach of the customary laws of war and is binding on all belligerents.

Luis Moreno-Ocampo was the Chief Prosecutor at the International Criminal Court who investigated allegations of war crimes during the 2003 invasion of Iraq. He published an open letter containing his findings; in a section titled "Allegations concerning War Crimes", he elucidates this use of distinction:

Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives,[4] even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv).

Article 8(2)(b)(iv) criminalizes:
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;
Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are "clearly" excessive. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of:
(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was "clearly excessive" in relation to (b).

— Luis Moreno-Ocampo.[6]

See also

Footnotes

  1. ^ Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons. I.C.J. Reports. July 8, 1996. pp. 226, 257.
  2. ^ Crawford, Emily. Lattimer, Mark; Sands, Philippe (eds.). Who is a Civilian? Membership of Opposition Groups and Direct Participation in Hostilities. Hart. p. 20.
  3. ^ "Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.: Article 4 - Definition of protected persons". International Humanitarian Law Databases. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals . . . Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.
  4. ^ a b Article 52 of Additional Protocol I to the Geneva Conventions provides a widely accepted definition of military objective: "In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make 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" (Source: Moreno-Ocampo 2006, page 5, footnote 11).
  5. ^ "Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants". ICRC, Customary IHL Database.
  6. ^ Moreno-Ocampo 2006, See section "Allegations concerning War Crimes" Pages 4,5.

References

Further reading
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